BILL 33

An Act to Amend the Public Works Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 1 of the Public Works Act, chapter P-28 of the Revised Statutes, 1973, is amended

(a)  in the English version of the definition “public work” by striking out the period at the end of the definition and substituting a semicolon;

(b)  in the French version of the definition “propriétaire” by striking out the period at the end of the definition and substituting a semicolon;

(c)  by adding the following definitions in alphabetical order:

“arbitral tribunal” means a sole arbitrator or a panel of 3 arbitrators; (tribunal d’arbitrage)

“work” includes, but is not limited to, the construction, extension, enlargement, alteration, repair, maintenance and improvement of lands, buildings and structures. (travaux)

2 Subsection 2(1) of the Act is repealed and the following is substituted:

2(1) The Minister is responsible for and has the general administration, management, direction and control of

(a)  public works,

(b)  the work carried out on public works, and

(c)  all money allotted for the acquisition of public works and the work carried out on public works.

3 Section 8 of the Act is amended

(a)  by repealing paragraph (b) and substituting the following:

(b)  take possession of any land, waters or watercourse that in the Minister’s opinion is necessary to carry out work on a public work, or for obtaining access to that public work,

(b)  in paragraph (c) by striking out “for constructing, maintaining or repairing a public work” and substituting “used to carry out work on a public work”.

4 The Act is amended by adding after section 8 the following:

Power of Minister to enter buildings and on lands designated as public works

8.1 The Minister may, by himself or herself or by his or her architects, engineers, agents and workers, enter any building or on any land that is, for the purposes of a project, designated as a public work by the Minister in order to carry out work on that public work.

5 The Act is amended by adding after section 9 the following:

Notice of intention to designate

9.1 Before the Minister designates any land or building as a public work for the purposes of a project, the Minister shall serve notice in writing of the intention to designate on the owner of the land or building.

Service of notice

9.2(1) A notice under section 9.1 shall be sufficiently served if it is mailed by registered mail to the latest known address of the owner.

9.2(2) Service by registered mail shall be deemed to be effected 30 days after the date of mailing.

Exemption from the Community Planning Act

9.3 With respect to lands and buildings that are, for the purposes of a project, designated as public works by the Minister, the Minister is exempt from compliance with

(a)  the Community Planning Act,

(b)  any by-law enacted under the Community Planning Act,

(c)  any regulation, order or demand made under the Community Planning Act,

(d)  any term or condition made or imposed under the Community Planning Act, and

(e)  any decision of the Assessment Planning and Appeal Board made under the Community Planning Act.

Permits, licences and approvals

9.4(1) Despite any other Act, the Minister may apply for any permit, licence or approval that he or she considers necessary to carry out work on the lands and buildings that are, for the purposes of a project, designated as public works by the Minister.

9.4(2) If the Minister is unable to meet the requirements or comply with the terms and conditions for the issuance of the permits, licences and approvals referred to in subsection (1), the Ministers responsible for the issuance of the permits, licences and approvals may, despite the fact that the Minister is unable to meet the requirements or comply with the terms and conditions for their issuance, issue the permits, licences and approvals to the Minister.

6 Section 11 of the Act is repealed and the following is substituted:

Arbitration

11(1) If the Minister does not agree with the compensation claimed under subsection 10(2), the Minister shall, within 60 days after receiving the claim for compensation, offer in writing the amount that the Minister considers to be reasonable compensation and at the same time give notice to the person claiming compensation that if the amount of the offer is not accepted within 60 days after the date the person receives the offer, the matter of compensation will be submitted to arbitration.

11(2) If the person claiming compensation does not accept the offer of the Minister within 60 days after receiving the offer, the Minister shall submit the matter of compensation to arbitration and the Minister and the person claiming compensation shall be deemed to have entered into a written arbitration agreement.

7 The Act is amended by adding the following after section 11:

Application of Arbitration Act

11.1 The Arbitration Act applies to an arbitration under this Act but, when there is a conflict between a provision of this Act and a provision of the Arbitration Act, the provision of this Act prevails.

Exclusive jurisdiction of arbitral tribunal

11.2(1) An arbitral tribunal has exclusive jurisdiction to hear and determine all matters of compensation under this Act and no court shall intervene in the matter of compensation, except for the following purposes:

(a)  to assist the arbitration process;

(b)  to prevent unfair or unequal treatment of a party to an arbitration agreement;

(c)  to enforce awards.

11.2(2) No person shall apply for compensation under Part II of the Expropriation Act or any other Act for damages suffered by virtue of anything done under this Act.

Appointment of arbitral tribunal

11.3(1) Within 10 days after the date on which the Minister submits the matter to arbitration, the Minister and the person claiming compensation shall appoint a sole arbitrator.

11.3(2) If the Minister and the person claiming compensation are unable to agree on the appointment of a sole arbitrator within 10 days after the date on which the Minister submits the matter to arbitration, an arbitral tribunal consisting of 3 arbitrators shall be appointed as follows:

(a)  one by the Minister;

(b)  one by the person claiming compensation; and

(c)  one by the arbitrators appointed under paragraphs (a) and (b) who shall act as chair of the arbitral tribunal.

11.3(3) The Minister and the person claiming compensation shall each appoint an arbitrator within 10 days after the expiration of the time period referred to in subsection (2).

11.3(4) If the Minister or the person claiming compensation fails to appoint an arbitrator within 10 days after the expiration of the time period referred to in subsection (2), The Court of Queen’s Bench of New Brunswick shall appoint an arbitrator on behalf of the Minister or the person, as the case may be.

11.3(5) If the arbitrators appointed under paragraphs (2)(a) and (b) are unable to agree on the appointment of the chair within 20 days after the appointment of the second arbitrator, The Court of Queen’s Bench of New Brunswick shall appoint the chair on their behalf.

Fees and expenses of arbitral tribunal

11.4(1) If an arbitral tribunal consists of a sole arbitrator, the Minister is responsible for the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration.

11.4(2) If an arbitral tribunal consists of 3 arbitrators,

(a)  the Minister is responsible

(i) for the fees and expenses of the chair,

(ii) for the fees and expenses of the arbitrator appointed by the Minister, and

(iii) for any other expenses related to the arbitration, and

(b)  the person claiming compensation is responsible for the fees and expenses of the arbitrator appointed by that person.

Decision of arbitral tribunal

11.5 Within one year after the date on which the Minister submits the matter of compensation to arbitration, the arbitral tribunal shall make a decision on the matter of compensation.

8 Subsection 12.1(8) of the Act is amended by striking out “administration, management and control” and substituting “general administration, management, direction and control”.

COMMENCEMENT

9 This Act shall be deemed to have come into force on September 15, 2008.